Landmark Supreme Court Ruling on Technology and the Fourth Amendment

On Monday, the Supreme Court issued an important ruling on the subject of surveillance in light of today’s technologies. Its opinion in United States v. Jones makes the rules for surveillance much less clear, which perhaps is not surprising given the rapid technological change and the need for further legislative and judicial action to address these complex new issues.

Law enforcement long has used surveillance to track the comings and goings of suspects, probationers, and parolees as well as suspected spies, terrorists, and the like. Surveillance was oftentimes necessary and always valuable to make a case. Surveillance also helps law enforcement learn when a crime is about to occur so that the police can prevent it or catch the perpetrators. The actual conduct of surveillance traditionally involves “shoe leather,” binoculars, cars, and cameras, with a team of cops following a suspect as he travels about.

Traditional surveillance did not raise many novel legal issues. Over 50 years, the Supreme Court had repeatedly ruled that what a person exposes to the public—e.g., his location on city streets—is public information that the government may freely use for any lawful purpose.

Monday’s decision changes that rule. Because the federal government suspected Antoine Jones of drug trafficking, it attached a Global Positioning System (GPS) tracking device to the undercarriage of his wife’s car, tracked his whereabouts for about 30 days, and used that evidence against him at trial. The Supreme Court decided that attachment and use of that device to monitor Jones’s movements constituted a “search” for purposes of the Fourth Amendment. Placement and use of a GPS device on Jones’s car was a trespass on his property by the government, the Court reasoned, which amounts to a “search.”

It is most likely that the Supreme Court found troubling the government’s ability to keep track of anyone and everyone through use of modern-day technology, particularly a GPS device. The Court mentioned the fact that the police in the Jones case used visual surveillance and a fixed camera as part of the investigation, and the Court did not criticize the use of those longstanding techniques. The reason may be due in part to their inherent limitations, not just because they do not involve a trespass. There has always been a practical limit on the number of police officers that could be assigned to a particular surveillance operation, the number of cameras that can be installed in public areas, and the amount of time that a person would expose himself to public surveillance. Those practical limitations create less public and judicial angst when the police use those surveillance practices, which affects how the public and courts feel about their use without prior judicial authorization.

Modern-day electronic surveillance devices, however, explode those limitations. The difference between using shoe leather or a Crown Vic to follow a suspect and a GPS device for surveillance is a difference in kind, not degree (or, if it is a difference in degree, it’s like the difference between a body temperature of 98.6 degrees Fahrenheit and one of 28.6 degrees). The problem is that technology has so enhanced the ability of law enforcement to track someone—whether through security cameras spread throughout a city; bank deposits and withdrawals; credit card transactions; vehicle, school, employment, and financial databases; facial recognition software; and so forth—that the old paradigm no longer may apply. From here on out, whenever the government overcomes the physical limitations on human observation by using any newfangled contraption, the claim will be made that use of the device is a “search.”

That much is certain. How the Fourth Amendment regulates surveillance after Jones, however, is an open question. The Court limited its decision to both the GPS device used on Jones’s car and the narrow legal issue raised by his case. The implications of what the Court held, however, are far broader than the case itself. Does Jones require that traditional surveillance techniques also be treated as a search? Must the police obtain a search warrant before using a GPS device? And what rule applies when the government uses such equipment to watch suspected terrorists (or spies) rather than street thugs? Expect to see a flurry of litigation over these types of questions in the months to come.

Paul J. Larkin Jr. directs The Heritage Foundation’s project to counter abuse of the criminal law, particularly at the federal level, as senior legal research fellow in the Center for Legal and Judicial Studies.

Join The Discussion

I would have a problem if the government attached a tracking device to my person, but a car isn't a person. Knowing where a car is at all times is a far cry from knowing where I am at all times. If the government had sufficient resources, they could track the car more effectively without a GPS since a GPS signal is lost when the car is undercover.

I hate to make it any easier for criminals and those knowingly involve in criminal activities but this technology could pave the way for spying on anyone at anytime who uses a GPS. I have to fall on the side of at least requiring a search warrant . I consider terrorist activities an act of war against the United States and the law should be applied differently. Also, parolees and probationary situations should be treated differently.

Our technology may offer advanced levels of observation (someday satellite cameras for law enforcement and security) but it is important to remember the basics of investigation training. The plain-view doctrine, search and seizure, handling of evidence, all must conform to the basic rules supported by the courts. To become independent and by-pass our legal departments by acting on our intuitions has always been a dangerous move. The investigation matrix should include a review of legal findings either through our attorneys (in-house or contract) or a second opinion by a high ranking member of the department not directly involved with the investigation. The fruit of the poisonous tree doctrine will obviously play a role in the results of this case and others like it.

Our 4th Amendment and 9th Amendment privacy rights have been mangled by surveillance cameras and TSA searches. People complain to each other, but not in any concerted way to their legislative and executive representatives. Some say privacy is gone, and there is no getting it back. We should not give up so easily. Those of us who are aware or care about privacy have been too passive. Perhaps this unusual Supreme Court decision showing backbone will be the beginning of rolling the intrusive government monolith back.

Mr Obama has one of his hands on your wallet, the other on a computer search machine looking at where you've been and what you've been doing on the internet, an ear listening to your phone and skype conversations, and the other ear, of course, is listening to Mr Putin.

Using a GPS to me is the same as listening in on phone conversation, you need a warrant. I have a problem with that product that you call if you're in an accident. They can open your car, they have a commercial where they shut the car off as the cops chase the stolen car. They can track you that way, they can track you if you use easy pass. Granted if you stay in a city that is a non issue, but we have lost much of our privacy just using all the gizmos out there that track every keystroke we make.

@ Vladimir: OnStar already has GPS, and can be accessed by government. Doesn't make it right, though.
@ John W. Dowdy: I hate to burst your bubble, but current satelites can track anyone, any time. They can read your license plate with current technology. Not to mention UAVs being used by some police departments.
@ William Wehirly: Unfortunately our government does not abide by the constitution at so many levels that privacy may in fact be gone. Whether it is gone forever is, at least in some respects, up to us.

In today's times most Americans seem to forget the "Patriot Act" implemented soon after 9-11. I have not forgotten what we surrendered in the name of "anti-terrorism" protection. How does the "Supreme Court" feel about that one? You gave up a lot of privacy way back then? You say it was necessary? Was it? I often wonder how much of it really was? Our government does not answer to the same rules that we do. Every American reading this post needs to be really alarmed at this point with the new "ACTA" legislation" being pushed forward by the Obama Administration. You ask what is ACTA? Google it. While you're at it try searching "UN Amendment 21". Ignorance is precisely what our current administration wants from you. Many may not realize that most of all the legislation passed under our noses was bought and paid for by major companies and special interests through paid lobbyist residing on "K" Street in Washington DC. Politicians are bribed and given special vacations all the time for favors. This is the new America. The newest attempt to take even more freedom away from you will filter the internet in the name of "Anti-Piracy" enforcement. We better be worried because this bill could "Cut off your internet" or land you in court with fines and possible jail time just for sharing a song with one of your friends.
Get mad , get busy emailing, and calling your State Senators telling them to stop trying to push "ACTA" down our throats. I am not a fanatic or alarmist,just an informed citizen born in this country and tired of giving it all away to uncle SAM and the "Illegal Aliens". Obama wants you to educate them at your expense since "They are already here". How are we ever going to stop deficit spending from bankrupting this country with that man continuing to grow "Big Government".
The "Supreme Court" is so far out in "Left Field ", that it too, is answering to special interest and not the core principals that made this country great.

Innocent persons have no need to hide their affairs or whereabouts, but do deserve their right of privacy. They need only fear two groups: proven criminals carrying on with impunity, and unethical, predatory powers-that-be.

To my mind, a person who deliberately commits a crime, knowing it is against the law – that person gives up certain rights, and should be investigated by whichever non-destructive means result in building iron-clad proof of guilt. While some rights ought not be revoked in any case, neither should crime go unpunished for any reason.

Therefore, let persons factually known to be guilty be convicted and punished, regardless of the method by which it was accomplished, but let the agency whose methods are deemed infringement of rights also incur penalties, specified by law. This might help to eliminate two problems – decrease in certain crimes due to general knowledge that release on technicalities is no longer a refuge, and reckless zeal by law enforcement agencies, due to the knowledge that indiscriminate denial of suspects' rights may result in penalties imposed upon them and their officers.

In other cases, where officials and governments use investigative means for purposes other than legitimate law enforcement, these actions should definitely be considered a crime, with no immunity, and made subject to stiff penalties, covering a range including fines, loss of rank or position, impeachment, and even imprisonment, according to legislatively defined degree of severity.

What are we thinking? Everywhere we go we are subjected to a video/still camera, i.e., shopping, dining out in restaurants (some can even listen in to your conversation at the table), walking/driving on the streets; EYES EVERYWHERE LOOKING AT US. Just try driving through a red light, or drive through a toll booth without your pre-paid device intact, blessings are forthcoming in the mail advising, you owe, you owe! Tune into a TV program and the Neilson Poll can determine how many are watching. Send an email, check out a site on the internet, someone will always be attaching cookies to your computer and know who you are and what you access. Freedom is in doing what is right and lawful. Any person participating in terrorist or criminal activities is in the process of taking away our rights, and in so doing should be subject to investigation. Law enforcement should always have documented probably cause for any act of surveillance, if not why are they watching in the first place. Let the courts (jury) decide after the fact whether the surveillance was justified by prevailing probably cause.

I think our forefathers constitutional rights given to us has been suspended while the people slept. Communists on the left, facist's on the right. Welcome to the new world order and govt. under the constitution of the Newstates of America. I am a constitutional conservative, but we are in trouble.

Does common sense count for anything? If a law enforcement entity has documentation that leads to suspicion that a person is a drug dealer or violent criminal, then it should be lawful to use any type of surveillance including GPS. Our judicial system is more concerned with protecting rights of criminals than protecting rights of victims or potential victims.

This may be construed as not being revelant to this post, but actually in the long haul it is. What is going on right now in our Republican primary with the bashing of former speaker Gingrich is very important as to how they- the establishment republicans, want to not only silence him, but control the press, and our elections. The establishment republicans , (Freemasons, Trilateral Commission, Council of Foreign Relations, headed by Karl Rove is the one's backing Mitt Romney. He is their New World Order candidate and will do anything to stop Gingrich as he is not controlled by them. These people are very intent on this , as they have been planning this for decades.Everything i am saying can be found in The Protocol's of the Learned Elders of Sion. Piece by piece, step by step, until we are enslaved. Most likely, what i am telling in this post won't ever be posted. So much for free speach.

I believe that in the society we live in today, the liberal potential of the justice system that police should cover their bases and obtain a search warrant if they have targeted a specific person or persons. If there is a
ny doubt, get your warrant which is easy enough to obtain with just probable cause. That way you have covered your bases, got your perp, and most likely will make the charges stick.

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